Summary
identifying five factors for determining whether exigent circumstances exist: degree of urgency and amount of time necessary to obtain a warrant; reasonable belief that contraband is about to be removed; possibility of danger to officers guarding the site of contraband while a search warrant is sought; awareness of suspects that police are on their trail; and ready destructibility of contraband and knowledge that efforts to dispose of narcotics are characteristic of those engaged in narcotics traffic
Summary of this case from State v. EllisOpinion
I.D. 0009019194
Submitted: June 1, 2001
Decided: June 8, 2001
On Defendant's Motion to Suppress. Granted in Part, Denied in Part.
Joelle Wright, Deputy Attorney General, Attorney for the State.
Joseph W. Benson, Attorney for the Defendant.
MEMORANDUM OPINION
On September 26, 2000, Wilmington Police officers arrested Defendant, Jose Ada. A Grand Jury subsequently indicted Defendant with Trafficking in Cocaine, Possession With Intent to Deliver a Schedule II Controlled Substance, Possession with Intent to Deliver a Schedule I Controlled Substance, and two counts Use of a Dwelling for Keeping Controlled Substances.
Defendant subsequently filed a Motion to Suppress, asking that the Court suppress any and all evidence seized during the police search of Apartment C-4, 3501 Lancaster Avenue and 2724 West 4th Street in Wilmington, Delaware. The Court held a hearing to consider Defendant's motion on April 23, 2001. At the conclusion of the hearing, the Court asked the parties to submit memoranda on certain issues involved in the motion.
The facts pertinent surrounding Defendant's arrest, as established by the affidavit in support of the search warrant at issue and the testimony provided during the suppression hearing, are as follows. In the first week of June 2000, a "concerned citizen" contacted Wilmington Police to inform them that an individual, later identified as Defendant, was possibly selling illegal drugs from Apartment C-4 of the West Court Apartments, located at 3201 Lancaster Avenue.
During the third week of June 2000, police conducted surveillance of 3201 Lancaster Avenue, Building C. During the same week, police sent two confidential informants, on separate occasions, to Building C to attempt to purchase crack cocaine from Apartment C-4. On both occasions, an Hispanic male, later identified as Defendant, told the confidential informants that he did not know them and terminated contact.
Also during the third week of June 2000, two undercover Wilmington Police detectives approached Building C on separate occasions to attempt to purchase crack cocaine from Apartment C-4. Again, an Hispanic male, later identified as Defendant, informed both undercover officers that he did not know them and terminated contact.
During their surveillance, police observed a pick-up truck pull into the parking lot of West Court Apartments. A white male, later identified as Richard Deptula, exited the truck and entered Building C. Deptula left the building a short time later and departed with an unidentified white female. Deptula later returned, unloaded several wooden two-by-four boards from the back of his truck, and took them into Building C.
Police also observed an unknown white female pull up to the apartments and exit her vehicle. The female entered Building C and exited a short time later, accompanied by Defendant. Both drove away in the female's car. Police followed Defendant and the female to 4th Street and Greenhill Avenue where they witnessed Defendant enter a residence at 2724 West 4th Street.
During the fourth week of June 2000, police observed a white male and female pull into the apartment parking lot and enter Building C. When the pair exited the building and drove off, police stopped their mini-van. Police found both occupants to be in possession of crack cocaine. The female informed police that the pair had gone to 3201 Lancaster Avenue, apartment C-4 and purchased crack cocaine from Defendant. During the same week, police also received information that Defendant had been told that the police were watching him and that Defendant had stopped selling drugs out of the apartment. Police continued their surveillance one more day and then ceased watching the apartment.
During the third week of August 2000, police were contacted by Officer Lawrence Collins of the Department of Probation and Parole, who advised them that, "a subject by the name of Richard Deptula was possibly selling drugs" for a subject who lived in the 2400 block of West 4th Street.
During the second week of September 2000, police conducted video surveillance on 2724 West 4th Street. Police observed Defendant come and go from the apartment and use a key to lock and unlock the door. Police followed Defendant when he left the residence, carrying a gym bag, to the area of the West Court Apartment complex.
On September 26, 2000, police met with an informant who knew Deptula. Police gave the confidential informant $500 and told him to contact Deptula and ask Deptula to purchase drugs for him. Police followed the informant and Deptula to the West Court Apartments. Police observed Deptula exit the informant's car and enter Building C. Deptula came out a short time later and got back into the confidential informant's automobile.
A marked police car stopped the car on a street a few blocks away. Police took Deptula into custody and located heroin on his person and crack cocaine under the seat. When asked where he got the drugs, Deptula responded, "you guys already know." Deptula then stated that he purchased the drugs from Defendant.
Officer Vincent Jordan of the Wilmington Police testified that he had wanted the police stop of the confidential informant's car to take place out of sight of the apartment. After police realized that Defendant might have seen the stop from the apartment, they decided to go back to the apartment without seeking a search warrant. Police knocked on the door of Unit C-4, but received no answer. After determining that the door was unlocked, police entered the unit. Subsequently, police applied for and obtained a search warrant for both the Lancaster Avenue apartment and the residence at 2724 West 4th Street.
In his Motion to Suppress, Defendant argues that the police search of the Lancaster Avenue apartment violated his Fourth Amendment protection from unreasonable search and seizure because police officers did not obtain a warrant prior to the search and because no exigent circumstances existed that would have made it impracticable to secure a search warrant. Defendant also argues that the search warrant issued for the residence at 2724 West 4th Street is not supported by probable cause contained in the affidavit in support of the warrant.
Initially, Defendant argues that no exigent circumstances existed to justify the police entry into the Lancaster Avenue apartment in the absence of a search warrant. The State responds the police stop of the confidential informant's vehicle occurred within sight of Defendant's apartment, created an exigency, or, alternatively, that there was an independent source for the search warrant under which the evidence was subsequently seized.
The Fourth Amendment of the United States Constitution protects against unreasonable searches and seizures and requires the State to first obtain a warrant supported by probable cause before entering into a person's home. Warrantless searches and seizures are presumed to be unreasonable, even where supported by probable cause, unless the occupants consent to the search or exigent circumstances exist to justify the intrusion. Welsh v. Wisconsin, 466 U.S. 740 (1984). Exigent circumstances have been found to exist, and thus a warrantless intrusion justified, where there is "a hot pursuit of a fleeing felon, or immanent destruction of physical evidence . . . or the need to prevent a suspect's escape, or the risk of danger to the police or to other persons inside or outside the dwelling." Minnesota v. Olsen, 495 U.S. 91, 100 (1990) (citations omitted).
More specifically, courts have also found to be relevant the following factors:
(1) the degree of urgency involved and amount of time necessary to obtain a warrant;
(2) the reasonable belief that contraband is about to be removed;
(3) the possibility of danger to the police officers guarding the site of contraband while a search warrant is sought;
(4) information indicating the possessors of contraband are aware that the police are on their trail; and
(5) the ready destructibility of the contraband and the knowledge that efforts to dispose of narcotics and to escape are characteristic behavior of persons engaged in the narcotics traffic.State v. Ellison, Del. Super., I.D. No. 9701020567, Carpenter, J. (Aug. 13, 1998), Mem. Op. at 14 (quoting United States v. Rico, 51 F.3d 495, 501 (1995). cert. denied, 516 U.S. 883 (1995) (citations omitted)). It is the State's burden to show that such an exigency existed. Welsh, 466 U.S. at 750.
Having considered the facts of this case in light of the factors set forth above, the Court finds that sufficient exigent circumstances existed to justify the police officers' warrantless entry into the Lancaster Avenue apartment. As set forth above, police officers in a marked patrol car stopped the vehicle containing Deptula and the confidential informant shortly after they left the parking lot of the apartment building. Detective Jordan believed that it would have been possible for the occupants of apartment C-4 to see the stop, which occurred a few blocks away, from their back window.
Jordan also testified that obtaining a warrant would have taken "at least" an hour and that he believed evidence might be destroyed in the meantime. Jordan explained that he had experienced situations where suspects destroyed drug evidence after being tipped off that police had stopped a buyer after a drug deal. Given the situation, police decided to go back to the building without first obtaining a warrant. The Court finds that it was reasonable for the officers to believe that the stop might have been observed by the apartment occupants and that, given the ready destructibility of the drugs involved, their belief that contraband was about to be destroyed was also reasonable. In addition, police knew that Defendant had been informed previously that police were watching the apartment and had ceased dealing drugs from that location for a period of time.
However, the Court's inquiry does not end with its finding that exigent circumstances existed in the instant case to justify a warrantless search of the apartment. Police cannot justify a search on the basis of exigent circumstances where those circumstances are created by their own actions. Ellison, at 15 (citing United States v. Allard, 9th Cir., 634 F.2d 1182 (1980)). This Court has previously considered this issue in the context of similar circumstances. Ellison determined that police were justified in entering a residence without a warrant where it was reasonable to for officers to believe that a police stop of a vehicle involved in a drug transaction would have been observed by the occupants of the residence. Ellison at 16.
Ellison noted that the issue of whether the exigency created by the police stop was created by the officer's own action was made more complex because "logical, appropriate and simple steps could have been taken to avoid this situation." Id. In that case, as well as in the instant case, the vehicle could have been allowed to travel further away from the suspect apartment, for example. However, Ellison distinguished such a situation from one where police have deliberately created exigent circumstances merely to justify a search. Id. Ellison concluded:
While it is fair to assume that the Court believes more reasonable steps could have been taken to avoid detection, it does not believe it is fair to second guess decisions and judgments of law enforcement officers concerning the risk of a particular situation merely because the Court in hindsight concludes that another alternative would have been better. As such, the most appropriate avenue to take when forced with this decision is to review the totality of the circumstances in order to determine whether the exigency was created through unreasonable investigative tactics.Id. (citing United States v. Blount, 5th Cir., 123 F.3d 831 (1997), cert. denied 522 U.S. 1097 (1998)).
As in Ellison, the Court cannot conclude, under the totality of the circumstances, that the officer's actions in the instant case were unreasonable. Jordan testified that, prior to the police stop, he had intended to secure a search warrant before entering the apartment and that he had wanted the stop to occur out of sight of the apartments. Only after the marked police car stopped the confidential informant's car did Jordan realize that the car could possibly be seen from the apartment. As a result, the Court cannot conclude that the police manufactured the exigency requiring their warrantless entry into the apartment through unreasonable tactics. Therefore, the Court finds that the search of the apartment at Lancaster Avenue was not unreasonable and the results of the search are admissible as evidence against Defendant.
Defendant next argues that the search warrant issued for 2724 West 4th Street is not supported by probable cause. Defendant argues that the only facts known to police were that Defendant had been seen on several occasions entering or exiting the residence. No other objective evidence exists to link Defendant to the address or to show that any illegal activity was taking place at the residence involving Defendant.
The Fourth Amendment provides that a search warrant may be issued only upon a showing of probable cause. Del. Const. art. I, § 6. Therefore, the search warrant must be supported by an affidavit which establishes sufficient cause for the warrant's issuance. Wilson v. State, Del. Supr., 314 A.2d 905, 906 (1973). Probable cause for a search may be established in the affidavit by setting forth facts "sufficient to warrant a reasonable man in the belief that seizable property would be found in a particular place or on a particular person." Id. at 906-907 (citing Carroll v. United States, 267 U.S. 132 (1925)).
These requirements are codified in 11 Del. C. § 2306 and § 2307. Section 2306 provides that the application for a search warrant must "state that the complainant suspects that such persons or things are concealed in the house, place conveyance or person designated [in the application] and shall recite the facts upon which such suspicion is founded." (Emphasis added.) Section 2307 provides that if the judge, justice of the peace, or magistrate finds that probable cause exists for the search after reviewing the record, the warrant may then issue.
11 Del. C. § 2306 provides:
The application or complaint for a search warrant shall be in writing, signed by the complainant and verified by oath or affirmation. It shall designate the house, place, conveyance or person to be searched and the owner or occupant thereof (if any), and shall describe the things or persons sought as particularly as may be, and shall substantially allege the cause for which the search is made or the offense committed by or in relation to the persons or things searched for, and shall state that the complainant suspects that such persons or things are concealed in the house, place, conveyance or person designated and shall recite the facts upon which such suspicion if founded.11 Del. C. § 2307 provides:
If the judge, justice of the peace or other magistrate finds that the facts recited in the complaint constitute probable cause for the search, that person may direct a warrant to any proper officer or to any other person by name for service. The warrant shall designate the house, place, conveyance or person to be searched, and shall describe the things or persons sought as particularly as possible, and may be made returnable before any judge, justice of the peace or magistrate before whom it shall also direct to be brought the person or thing searched for if found, and the person in whose custody or possession such person or thing is found, to be dealt with according to law.
Sections 2306 and 2307 establish a "four-corners" test for probable cause. Dorsey v. State, Del. Supr., 761 A.2d 807, 811 (2000) (citing Pierson v. State, Del. Supr., 338 A.2d 571, 573 (1975)). That is, sufficient facts must appear on the face of the affidavit so that a reviewing court can verify that probable cause existed for issuance of the warrant. Id. As a result, the affidavit in support of a search warrant must set forth "facts adequate for a neutral judicial officer to form a reasonable belief that an offense has been committed and that seizable property would be found in a particular place or on a particular person." Id. (Citations omitted.)
The affidavit in support of the search warrant for 2724 West 4th Street provides that police conducted visual and video surveillance of the residence. Police witnessed Defendant coming and going from the residence and observed Defendant use a key to enter and lock the front door of the residence. Defendant was once observed leaving the residence with gym bag and was followed to the area of the Lancaster Avenue apartment. The affidavit also provides:
Your affiants then believed that [Defendant] may be keeping the main portion of his drugs at 2724 W. 4th St. While he sold out of the apartment at 3201 Lancaster Ave. Apt C-4. Your affiants are very familiar with drug dealers who often keep their main supply location separate [sic] from their sales location. This is commonly done to prtect [sic] the dealers [sic] larger quantity of drugs in case the police execute a search warrant at the sales location.
The affidavit also provided that police had been provided with information from Officer Collins that Deptula was "possibly selling drugs" for a subject who lived in the 2400 block of West 4th Street. Based on their prior observation of Deptula at the Lancaster Avenue apartment complex, police believed that Deptula worked for Defendant.
The State argues that, based upon the above-cited information, it was reasonable to infer that Defendant would store drugs and related material in the 4th Street residence. Upon review of the affidavit in support of the search warrant at issue, the Court cannot find that the search warrant and supporting affidavit provide sufficient probable cause to search the residence at 2724 West 4th Street.
In the instant case, the Court cannot find that the facts set forth in the affidavit of probable cause are sufficient to form a nexus between the items police sought and the 4th Street residence, given that police observed no illegal or suspicious activity occurring at the residence. Nor is the statement in the affidavit that, Deptula was "possibly selling drugs" for a subject who lived in the 2400 block of West 4th Street sufficient to link Defendant to suspected illegal activity occurring at 2724 West 4th Street. As a result, the Court finds that the search warrant for that address does not establish probable cause for the search of the address. Any evidence obtained a result of the search is inadmissible.
In conclusion, Defendant's Motion to Suppress is hereby DENIED in part, as to the search of Apartment C-4, 3501 Lancaster Avenue. Defendant's Motion is GRANTED in part, as to 2724 West 4th Street.
IT IS SO ORDERED.